Davis v. Elzey , 126 Miss. 789 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

The appellee was plaintiff beloAV and brought suit against the appellant for damages for a personal injury inflicted by the operation of a locomotive of the appellant in the municipality of Shannon, in Lee county, Miss. The proof for the plaintiff shoAved that.he was approaching a crossing in the said municipality at the time he was injured, and that there was no sounding of a Avhistle or ringing of a bell to give Avarning of the approach of the locomotive and train of cars; that there was a platform on the side of the railroad track loaded with cotton which obstructed his vieAV so he could not see the approaching train, and as he drove on the track of the railroad the train came upon him at a high rate of speed, running at approximately thirty-five miles per hour, and that his team and wagon were struck and he was violently thrown a distance of forty-five feet, and as a result of the said fall plaintiff suffered concussion of the brain and injuries to his back, neck and head.

The proof for defendant showed that the train approached said crossing from the south, and that the whistle for the crossing was sounded twice, and that the train was running at the rate of fifteen miles per hour; that the engineer did not see the plaintiff until he drove upon the track, and he then did all he could to check his train by applying the emergency brakes and doing all in his power to stop the train, but that the engine struck the mules, broke the tongue from the wagon, carried the mules some four hundred feet from the place where they were struck, and that the plaintiff was thrown from the wagon a distance of forty-five feet. There was also proof that other parties near the scene of the accident tided to attract the attention of the plaintiff and warn him of the approach of the train, but were unsuccessful in attracting his attention. The testimony does not show that the bell was rung and kept continuously ringing for the distance required by statute on approaching crossings. Section 4045, Code of 1906 (section 6669, Hemingway’s Code).

When "the plaintiff was injured he was placed in the custody and under the treatment of Dr. Spencer, a physician employed by the railroad company, who treated him for his injuries. This injury occurred on the 13th day of November, 1919, and about three or four days thereafter the claim agent of the railroad company went to the home of the plaintiff and procured a release for the sum of forty-five dollars. When the release was procured there were present Dr. Spencer, the claim agent, the plaintiff, and the plaintiff’s wife, and their testimony is in direct conflict as to the condition of the plaintiff at that time and as to the facts concerning the signing of the release. The plaintiff testified that he was wholly unconscious and had no knowledge at all of signing such release. The plaintiff’s wife testified that he was unconscious, and that she protested that her husband was not in any condition to discuss the matter. The claim agent and Dr.-Spencer testified that plaintiff was rational, but was complaining and suffering to some extent. The release was pleaded in bar of the action and replication to this plea set up the facts as to plaintiff’s condition as above set forth.

On the 19th day of November, following the injury, another physician was called, who, in company with Dr. Spencer, examined the plaintiff, and on the following day three other physicians were in consultation with Dr. Spencer and made an examination of the plaintiff, and three of these physicians were placed on the stand by the plaintiff and testified that the plaintiff was suffering from brain concussion, and that it was impossible to tell the extent of the injury, or whether it would be permanent of not. They testified that the plaintiff was unable to. reason, that he was in a comatose condition and incapable of connected conversation, but that on being aroused he would ansAver a question and recognize a person, but would almost immediately relapse into his comatose state.

Dr. Spencer was offered as a witness by the defendant both as to the plaintiff’s condition at the time of the signing of the release and at the time he was examined by the other physicians. Dr. Spencer’s father, who was also a physician, at the request of Dr. Spencer attended the plaintiff and was present when some of the examinations were made. Both Dr. Spencer and his father were offered by the defendant to contradict the statements made by. the plaintiff’s physician, and on objection by the plaintiff they were excluded, which constitutes one of the assignments of error in this case.

There was a judgment for the plaintiff for five thousand dollars from which judgment this appeal was prosecuted.

The first assignment of error is that the verdict is contrary to the law and the evidence; and the second that the verdict is excessive and the result of passion and prejudice. Under these assignments of error it is first argued that it was wrong .to submit the case to the jury because the release was valid and binding, and Railway Co. v. Turnbull, 71 Miss. 1029, 16 So. 846, is relied on to support this contention. The appellee relies upon Jones v. Railway Co., 72 Miss. 22, 16 So. 379, the Chiles Case, 86 Miss. 361, 38 So. 498, and the Ault Gase, 101 Miss. 341, 58 So. 102. The court was warranted in submitting this question to the jury, and the law was correctly given the jury, and its verdict upon the question is conclusive.

It is also contended that the plaintiff’s gross negligence was the sole cause of the injury; that he deliberately drove upon the railroad track without looking, stopping, and listening to ascertain if there was danger in crossing the tracks. Under our joint negligence statute, if the railroad company was guilty of negligence in its operations, the negligence of the plaintiff would not defeat the action, but would merely go in reduction of the damages, and instructions along this line were submitted to the jury. The plaintiff testified that he would have heard the whistle had it been blown, and so does the witness Mr. Davis, and other witnesses for the plaintiff. This presented a conflict as to whether or not the whistle was blown at all, and presented for the jury the question as to whether the whistle was blown and the bell rung in accordance with section 4045, Code of 1906 (section 6669, Hemingway’s Code), which reads as follows: .

“Every railroad company shall cause each locomotive engine run by it to be provided with a bell of at least thirty pounds weight, or a steam whistle which can be heard distinctly at a distance of three hundred yards, and shall cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway or street; and the bell shall be kept ringing, or the whistle shall be kept blowing, until the engine has stopped Or crosses the highway or street.”

So we think this contention is not well taken on this appeal.

It is argued next that the verdict is excessive and the result of passion and prejudice.' In support of this argument it is contended that punitive damages were not allowable in this case because the railroad company was being operated by the United States government, and that punitive damages could not be inflicted against the government, and that punitive damages constitute a penalty in the meaning of that term as used in General Order No. 50 issued by the Director General directing suits, with certain exceptions, among which are actions, for penalties, to be brought against the Director General, .and not against the railroad company, and it is argued that, as punitive damages constitute a penalty, it falls within the exception, and the Director General cannot be sued. It is also argued that the reasons for allowing punitive damages are for the protection of society, and not for the benefit of the plaintiff, and that it is inconceivable that punitive damages be inflicted against the government.

If punitive damages are permissable, the verdict must be upheld as against this attack. The question turns upon the construction of the provisions of thé Federal Control Act' of August 29, 1916 (39 Stat. 619), and Act March 21, 1918 (U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, sections 3115 3-4a-3115 3-4p), with reference to government operation of railroads. We considered the effect of this statute in the case of Dantzler Lumber Co. v. T. & P. Ry. Co., 119 Miss, 328, 80 So. 770, 4 A. L. R. 1669, and reached the conclusion that this act of March 21, 1918 (section 3115 3-4j, U. S. Compiled Statutes 1918, Compact Edition, p. 458), authorized suits to be conducted and rights of action to lie as before the passage of the act, with the exception provided in the act as to the movements of transports, munitions of war, etc., in all respects as theretofore had been provided.

It is expressly provided in this act of March 21, 1918, that nothing in this act shall be construed to amend, repeal, impair, or affect existing laws or powers of the states in relation to taxation or lawful police regulations of the several states, except wherein such laws, powers, or regulations may affect the transportation of troops, war materials, government supplies, or the issue of stocks and bonds. In that case we said:

“It will be noted from the sections above quoted of the act of March 21, 1918, that while under federal control the carriers shall be subject to all laws and liabilities as common carriers whether arising under state or federal laws or at common law, except so far as may be inconsistent with the provisions of this act, or with any order of the President, and that actions may be brought against such carriers and judgment rendered as now provided by law. . . . It is clear from this section that it was not the purpose of Congress in enacting these laws to displace the state control any further than was necessary to enable the government 'to carry on war activities, transporting the troops, war materials, government supplies, and issuance of bonds. In all other respects it was the intent of Congress to leave the laws of the state in full force.”

We do not think the “penalties” or penal actions, excepted in General Order No. 50, embrace punitive damages in a suit against carriers for wrongs committed, or for negligence in not performing duties that ought to be performed. The penal actions contemplated in that proclamation are such that a separate suit could be brought therefor. No separate suit could be brought for punitive damages, but they are allowed to be recovered by plaintiff for a willful violation of his rights, or for a willful violation of a duty owed to him, not strictly as compensation for his injuries; but nevertheless as a remuneration for the willful violation of his rights, or for gross and wanton neglect of duties due him by the company. Where the statute allows punitive damages to be inflicted, the jury is ordin'arily a judge of the amount, and, applying the rule to the facts in this case, we cannot see where this is excessive in the light of the right, of the jury to inflict punitive damages and in the light of the instruction of the court on this subject.

It is next contended that' the court erred in excluding the evidence of the physicians offered by the defendant. It is argued that section 3695, Code of 1906 (section 6380, Hemingway’s Code), does not apply to the present case, because the examination was a joint examination by all of the physicians at which all were present, and, plaintiff having introduced some of the physicians, that tbe defendant had a right to introduce the other physicians to contradict their evidence, and that the plaintiff waived the privilege offered by statute when he placed some of the physicians on the stand.

We think the court has foreclosed this contention in its former decisions. Railroad v. Messina, 109 Miss. 143, 67 So. 963; Newton Oil Co. v. Spencer, 116 Miss. 568, 77 So. 605; U. S. F. & G. Co. v. Hood, 87 So. 115. In this last case the physician whose testimony was excluded was also present when another physician who testified examined the injured party, and it is precisely in point in the case before us.

It is contended in the next place that the court erred in granting the plaintiff an instruction on tbe prima-facie statute. Section 1985, Code of 1906 (section 1645, Hemingway’s Code). This instruction reads as follows:

“The court charges tbe jury that under the law proof of injury inflicted by the running of trains is prima-facie evidence of the want of reasonable skill and care on the part of the servants of the defendants with reference to such injury, and this presumption of negligence on the part of defendant’s servants remains and controls in the case until the facts and circumstances with reference to the injury have been satisfactorily proven to the jury, and if you are satisfied by a preponderance of the evidence that the plaintiff was injured by the running of a train of defendant, but are in doubt as to the facts and circumstances attending the injury, the defendant will be presumed to have been guilty of negligence and you will find for the plaintiff.” (Italics ours.)

The instruction as given does not correctly announce the law. The effect of the statute was fully discussed and the authorities reviewed and reconciled in this state in the case of A. & V. Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674, and quoted with approval in I. C. R. R. Co. v. Gray, 118 Miss. 612, 79 So. 812.

■ As was said in A. G. S. R. R. Co. v. Daniell, 108 Miss. 358, 66 So. 730, when the facts are fully disclosed by the evidence, the question is to be determined by the evidence, and not by the presumption of the statute. The instruction, however, does not constitute reversible error in this case for the reason that on the railroad company’s own evidence it was negligent in that it was running through a municipal corporation at a greater rate of speed than permitted by law. Section 3546, Code of 1892 (section 4043, Code of 1906; section 6667, Hemingway’s Code). Section 4043, Code of 1906 (section 6667, Hemingway’s Code), limits the rate of speed to six miles an hour and no more, and provides that the railroad company shall be liable for any damages or injury which may be sustained by any one from such locomotives or cars while they are running at a greater rate of speed than six miles an hour through any city, town, or village.

We think the evidence also shows beyond dispute that there was a failure on the part of the railroad company to comply with section 4045, Code of 1906 (section 6669, Hemingway’s Code), which requires that the bell shall be kept ringing or the whistle shall be kept blowing until th,e engine has stopped or crossed the highway or street. These two ? statutes impose liability in the present case, and the giving of the instruction above mentioned would be harmless in the present case because the railroad company is liable on the undisputed evidence.

The judgment will therefore be affirmed.

Affirmed.

Opinion on Suggestion op Error.

Ethridge, J.

In the former opinion handed down by this court on June 6, 1921, 88 So. 630, we. held that punitive damages were recoverable against the government operating the railroad through a director general,' and that consequently it was not error to give a charge to the jury authorizing the infliction of punitive damages in the case before us.

On suggestion of error our attention has been called to the decision in the case of Missouri Pacific Railroad Co. and Walker D. Sines, Director General of Railroads, v. Ault, 255 U. S.—, 41 Sup. Ct. 593, 65 L. Ed. —, decided by the United States supreme court on June 1,1921, which decision Avas not before'us when we reached our former conclusion. A careful consideration of this decision by- the United States supreme court, which is the court of final authority on this question, convinces us that we were in error, and that punitive damages may not be recovered against the government or the Director General. See Missouri Pacific R. Co. etc., v. Ault, 255 U. S. —, 41 Sup. Ct. 593, 65 L. Ed. —.

This construction by the United States supreme court in this opinion is practically conceded by the appellee, but the appellee insists that the giving of the instruction on punitive damages was harmless error, because the amount recovered Avas not more than fair compensation for the injury inflicted, and that under rule 11 of this court (72 So. vii) Ave should affirm the judgment.

We are unable to concur in this view. While the amount recovered might be upheld in the absence of an instruction for punitive damages, we cannot say with confidence that the jury would have rendered a verdict for this amount. Taking all of the facts together as shown in the record, Ave think the instruction on punitive damages contributed to the amount of the verdict, and that it would be fair to all parties to allow the damages assessed to be made under correct instructions upon that subject. On a new trial tbe jury may consider the negligence of the plaintiff, if any, along with the negligence of the defendant in determining the amount of damages. In all other respects the original opinion is adhered to.

The suggestion of error will be sustained, and the case remanded for a new trial as to damages alone; the judgment being affirmed as to liability.

Sustained